QUESTION:

This is in response to your memorandum dated
March 12, 2001, in which you asked for a legal opinion on the following
questions concerning the Term Limits Initiative of 1995:

(1) Whether limitations on the number of
consecutive 4-year terms elected officials may
serve in the positions of Mayor, Chairman or members of the Council, and
members of the Board of Education
require amendments to the Home Rule Charter;
and

(2) Whether D.C. Law 10-254 is valid to impose
limits on the number of consecutive terms
served by the Mayor, Chairman, members of the Council, and members of the Board of Education?

SHORT ANSWER:

Sections 402 and 421(c) of the District Charter
contain the exclusive qualifications for holding the office of Member of
the Council, Chairman of the Council, and Mayor, respectively. The plain
language of sections 402 and 421 of the District charter, legislative
history of the Home Rule Act, general rules of statutory construction, and
a leading U.S. Supreme Court case support the interpretation that limiting
the number of consecutive terms which a Member of the Council, Chairman of
the Council, or Mayor may serve is a qualification to hold office ("nonincumbency").
Consequently, a charter change would be required to implement this
directive. The Council cannot directly amend the Charter except through
the Charter referendum process in which a majority of the
registered qualified electors ratify a Council act, or an act of Congress
ratifying the Council act. HRA §§102 and 303. Because
Initiative 49 was not preceded by an act of the Council and a charter
referendum, nor has there been an act of Congress on this subject, in my
opinion, it was not the proper subject for an initiative. Furthermore,
even if it were the proper subject of an initiative, D.C. Law 10-254 is
drafted so poorly that it makes enforcement difficult, if not impossible.
Therefore, D.C. Law 10254, the Term Limits Initiative of 1995, is not
valid to impose limits on the number of consecutive terms served by the
Mayor, Council Chairman, or Members of the Council.

With respect to the Board of Education, since the
Charter does not establish the qualifications for members of the Board of
Education, changes to the qualifications for that office do not require a
Charter amendment and may be accomplished by D.C. Law 10-254.

I. BACKGROUND

A. The Council initiated a charter amendment to
delegate some of its legislative authority to grant the right of
initiative to the people.

Section 601 of the Home Rule Act, approved
December 24, 1973 (87 Stat. 813; D.C. Code §1-206) ("HRA")
gives Congress the ultimate legislative authority over the District.1
HRA §302 does, however, vest in the Council broad legislative powers over
"all rightful subjects of legislation within the District." D.C.
Code § 1-204. This grant of authority is not absolute. In order for the
Council to amend the District Charter it is required to follow the
procedure set forth in §303 of the Home Rule Act.2
Under that procedure an act must be passed by the Council and ratified by
a majority of the registered qualified electors of the District and
submitted for approval by the Congress, similar to the procedure
to amend most state's constitutions.
Because the legislative power in the District is established by the Charter,
when the Council wanted to grant the right of initiative to the people,
it could not merely adopt an act of the Council through the regular
legislative process. As a result, the right of initiative was
established through the initiation of the first charter amendment
referendum authored by the Council.3 The
Council adopted Bill 2-2, the "Initiative, Referendum, and Recall
Chatter Amendments Act of 1977" on first, amended first, and second
readings April 5, 1977, May 3, 1977, and May 17, 1977, respectively. The
purpose of the act was to allow the voters of the District of Columbia
to enact laws (except laws appropriating funds) directly without
legislative action by the Council of the District of Columbia.4
Following the signature of the Mayor on June 14, 1977, this legislation
was assigned D.C. Act No. 2-46 and submitted to the voters for
ratification. After ratification by the voters and approval by the
Congress, the legislation became effective on March 10, 1978 as D.C. Law
2-46.

The initiative process allows the
electors of the District of Columbia to propose laws (except laws
appropriating funds) and present such proposed laws directly to the
registered
qualified electors of the District of Columbia for
their approval or disapproval (D.C. Law 2-46; D.C. Code § 1-281(a))
("Initiative Act").

B. Initiative 49 Purports to Limit the
Mayor, the Chairman of the Council and Members of
the Council to two consecutive terms.

Pursuant to the Initiative Act, the District of
Columbia Term Limits Initiative ("Initiative 49") was placed
on the ballot of the November 8, 1994, General Election. On November 23,
1994, the Board of Elections and Ethics certified that Initiative 49 was
approved by the District's registered qualified electors (83,865 in
favor and 52,116 opposed). After its approval, the measure was assigned
D.C. Act No. 10-402, and subsequently took effect on March 23, 1995, as
D.C. Law 10-254.

Due to the means of enactment, there is no real
legislative history for the measure. The legislative intent of this
particular initiative appears limited to the language on the document's
face. Consequently, we must look at the words used in the Initiative to
determine the legislative intent. The Initiative's legislative text
states its purpose as follows:

To amend the District of Columbia Election Code of
1955 [to] establish a limitation on the number of consecutive terms a
person would be eligible to hold the office of Mayor, Council Chairman,
Councilmember, and Board of Education Member.

Section 3 of the Initiative is the "Statement
of law." That section amends the portion of the District of
Columbia election law which prescribes the qualifications of candidates
to elected offices, other than the office of Mayor, Council Chairman, or
Member of the Council.5 The proponents of Initiative 49 amended D.C.
Code §1-1312(b)(1) [section 8(b)(1) of the Election Code of 1955] to
designate the existing text as subparagraph (A) and added two new
subparagraphs (B) and (C). The new subparagraph (B) states, in relevant
part as follows:

(B) No person shall hold elected office pursuant
to this section if he or she, in the case of the Mayor, Council
Chairman, Councilmembers, Board of Education members, . . . . .
has held that same office for 2 consecutive terms.
(Emphasis added.)

The summary statement of the Initiative provides
that "these term limits would apply to terms served after this act
takes effect." Based on the current composition of the Council,
D.C. Law 10-254, if valid, would prohibit several Councilmembers from
seeking reelection in 2004.

C. The Charter establishes the qualifications for
the Office of Mayor, Council Chairman, and Member of the Council.

Title IV of the District of
Columbia Home Rule Act contains the District's Charter provisions.6
Section 421 of the Charter defines the qualifications for any candidate
seeking to run for Mayor.7 Similarly, the qualifications for Chairman of
the Council and Councilmembers are laid out in §402 of the Charter.8
These provisions contain the exclusive criteria for these elected offices.

Section 421 (c) also provides that the Mayor
shall forfeit his office upon failure to maintain the qualifications
required in that subsection. The Council Chairman forfeits that office by
failing to maintain the qualifications listed in §403(c) of the Charter.
Members of the Council forfeit the office of Councilmember by failing to
maintain the qualifications listed in 402 of the Charter. However, these
Charter provisions do not bar a person from serving as Mayor, Chairman and
member of the Council after that person has served two consecutive terms.
Therefore, D.C. Law 10-254, if effective, would add
"non-incumbency" as a new qualification for holding the office
of the Mayor, Chairman and member of the Council.

The qualifications for members of the Board of Education are established
in section 2 of An Act To fix and regulate the salaries of teachers,
school officers, and other employees of the Board of Education of the
District of Columbia, approved June 20, 1906 (D.C. Code §31-101(b)). That
section limits members of the Board of Education to two consecutive terms.

D. The Council has the authority over elections
in the District under HRA §752.

Section 752 of the Home Rule Act gives the Council plenary authority over
elections. That section states as follows:

Notwithstanding any other provision of this Act or of any other law, the
Council shall have authority to enact any act or resolution with respect
to matters involving or relating to elections in the District.

Presumably, the proponents
of Initiative 49 and the
Board of Elections and Ethics construed HRA §752 in a way that permits
the Council to alter the qualifications of the office of the Mayor,
Council Chairman, and Councilmember, without following the Charter
amending process. Because section 752 has never been interpreted by a
court, and because there are differing interpretations as to what it
means, particularly in relationship to other provisions in the Home Rule
Act, this provision is arguably unclear.

Generally, if the language of
legislative text is found to be ambiguous, then extrinsic aids to
interpretation, such as legislative history and case law may be examined.
Blum v. Stenson, 465
U.S. 886, 896 (1984); Singer, 2A Sutherland
Statutes and Statutory Construction, §48 .01
at 278 (4th ed. 1984). Assuming arguendo that HRA §752 is
ambiguous, its legislative history will be examined.

E. The legislative history of
the Home Rule Act provides support that HRA §752 gives the Council power
to regulate things that affect the way elections are conducted in the
District in ways that do not conflict with the District Charter provisions
governing the size and qualifications to hold the office of Mayor, Council
Chairman, and Member of the Council.

The legislative history of the Home Rule Act sheds light on the type of
power that Congress intended when it gave the Council "authority to
enact any act or resolution with respect to matters involving or relating
to elections" in HRA § 752. First, Congress included a definition of
"election" in the Home Rule Act. Section 103(11) of the Home
Rule Act defines "election" as "unless the context
otherwise provides, means an election held pursuant to the provisions of
this Act [Home Rule Act]". HRA §103 (11); D.C. Code §1-202(11).
The dictionary defines "election" as a noun which means "an
act or process of electing." Merriam-Webster's
Collegiate Dictionary (10th
ed. 1998) at 271. This appears to mean the ability to regulate things such
as the time, place, manner of the holding of the election itself, not to
the eligibility of persons to run in an election. I can find no support
for an interpretation that HRA §752 allows the Council to legislate
eligibility criteria for persons to run for the office of Council
Chairman. Member of the Council, or Mayor in ways that conflict with
specific provisions set forth in the District Charter.

This interpretation is supported by the
legislative history of the Home Rule Act. Throughout the legislative
history, members of both Houses contended that changes in Council
membership, including size and qualifications and changes in the
qualifications for Mayor should not be amendable by the Council. To the
extent that the language in section 752 which authorizes the Council to
enact legislation pertaining to elections in the District is considered
ambiguous with respect to the ability of the Council to unilaterally
expand the qualifications to hold elected office in the District, the
legislative history clarifies this ambiguity.

Pages 2916 and 2919, respectively, of a portion of
the Home Rule Act's legislative history state as follows:9

Item 2. Charter and Charter Amendment Process ---

Titles III and IV constitute the charter which,
except as specified in the following sentence, shall be amendable by an
act of the Council approved by a majority vote in specific referendum
(each proposed charter amendment may be vetoed by either house of
Congress and
there shall be no initiative). Part C of title IV;
part A, except provisions with respect to the size of the Council and
compensation and qualifications of members of the Council; and part B,
except the provisions with respect to the compensation and
qualifications of the Mayor, may not be amended by the Council.

Proposals II and V would remove the House's
separate provisions for a Congressional veto of Council pay raises for
the Mayor or the Council. These proposals would also require a voter
referendum for a Council change of its own size or qualifications for
holding office of Mayor or of Council member.

(Emphasis added). Thus, the above cited portions
of the legislative history of the Home Rule Act clearly indicates that
it was not the intent of Congress to allow the Council to change the
size and qualifications for the office of Council or the qualifications
for the office of Mayor through regular legislation, which would include
initiatives. Consequently, if Congress did not intend to allow the
Council to enact legislation to alter the qualifications of the Mayor
and councilmembers, as the legislative history indicates, then term
limits would not be the proper subject for an initiative, and Initiative
49 may be a violation of the Home Rule Act.10

The interpretation is different with respect to
members of the Board of Education. The legislative history of the Home
Rule Act supports the conclusion that the Council may unilaterally
expand the qualifications and terms of office for members of the Board
of Education since those provisions were not established by the Charter.
Prior to the adoption of the School Governance Charter Amendment Act of
2000 (Bill 13-469), section 495 of the Charter contained four elements
of the District's preexisting Board of Education that were given Charter
status, namely: (1) "Control" of the public schools to be
lodged in the Board, (2) there was to be an 11 member Board of Education (three at large members
and one from each ward), (3) members were to be elected on a nonpartisan
basis, and (4) members of the Board were to be elected pursuant to the
District of Columbia Elections Code of 1955 (a local law). Section 495
was adopted as a mere restatement of only those portions of the 1906 and
1968 statutes which created the Board of Education as an 11-member unit
of government.11 As such, section 495 assured that the existing
composition and jurisdiction of the Board would not be changed by the
Council.12 However, Congress purposely did not include within the
umbrella of section 495 the provision of the 1968 District of Columbia
Elected Board of Education Act which specified the terms of office,
qualifications office and other incidents of their election. D.C. Code
§ 31-101(b)(d). This fact stands as a strong endorsement of the
Council's ability by legislative act, or the residents of the District
of Columbia by the power of initiative, to impose a qualification
limiting terms for Members of the Board of Education.

II. DISCUSSION

THE QUALIFICATIONS FOR THE MAYOR, COUNCIL
CHAIRMAN,
AND MEMBER OF THE COUNCIL SET FORTH IN THE CHARTER
CANNOT BE AMENDED EXCEPT THROUGH A CHARTER
REFERENDUM INITIATED BY ACT OF THE COUNCIL
OR
AN ACT OF CONGRESS

It is well-established in the District of Columbia
that the power of initiative is co-existent with the power of the
legislative branch. See note 22 infra.
The threshold question then in analyzing whether
Initiative 49 was a proper subject matter for an initiative is whether
the contents of that initiative could have been enacted by an act of the
Council. While the answer to this question may vary, I believe that the
better interpretation, based on the plain language of HRA §§103(11),
402, 421, and 752; the legislative history of the Home Rule Act; well
established principles of statutory construction; and case law is that
the Council could not have adopted term limits for members of the
Council and the Mayor as regular legislation.

1. The plain language of the Home Rule Act limits
changes to the qualifications to hold the office of Member of the
Council, Council Chairman, and Mayor to provisions in the District
Charter.

In order to construe the meaning of a statute, one
must first "read and examine the text of the act" itself.
Singer, supra, §47.01 at 118. When construing the text of a statute, a
statute must be read as a whole and "each part or section should be
construed in connection with every other part . . . . " Id. at §46.05, 90. Furthermore, the words of a statute are to be given their
plain meaning. Id. at §46.01, 73.13 Where the meaning of a statute is
plain on its face, resort to the legislative history or other extrinsic
aids to assist in its interpretation is not necessary.
George Lennon v. United States,
736 A.2d 208, 210 (D.C. 1999) citing to
United States v. Young,
376 A.2d 809, 913 (D.C. 1977);
see Burgess v. United States,
681 A.2d 1090, 1095 (D.C. 1996);
Citizens v. Association of Georgetown v. District
of Columbia Board of Zoning Adjustment,
642 A.2d 125, 128 (D.C. 1995) (citations omitted).
I believe that the language of HRA §§103(11), 402, 421, and 752 is
plain enough to find that Congress intended that qualifications to hold
office would be Charter provisions, not subject to change by a regular
act of the Council, or by an initiative.

The plain language of HRA §103(11) defines
election to mean "an election held pursuant to the provisions of
this Act." The plain language of HRA §752 gives the Council
"authority to enact any act or resolution with respect to matters
involving or relating to elections in the District."

While the local courts have never interpreted HRA
§752, given the plain language of section 752, it is not difficult to
see that it applies to the process of electing individuals for public
office and is not a grant of authority to alter the qualifications of
individuals seeking elective office.

This provision may also be interpreted similarly
to the grant of authority granted to the states by the Constitution in
the Elections Clause.14 Relevant portions of this provision states:

The Times, places, and Manner of holding Elections
for senators and Representatives, shall be prescribed in each State by
the Legislature thereof . . . .

In
United States Term Limits Inc. v. Thornton,
514 U.S. 779, 131 L.Ed. 2d 881, 115 S.Ct. 1842
(1995), an attempt was made to construe this provision broadly to
justify term limits which the state of Arkansas attempted to impose on
Members of Congress. The Court determined that
the intent of the clause was "to grant states
authority to create procedural regulations, not to provide states with
license to exclude classes of candidates from federal
office."15

If HRA §752 was so interpreted by a court it
would mean that the Council can amend the District's election laws,
including the laws pertaining to the officers effected by D.C. Law
10254, at any time without the need for a Charter change.

Such an interpretation would also conflict with
the plain language of sections 402 and 421 of the District Charter.
Those sections specifically state that they contain
"qualifications" for holding the office of Council Chairman,
Member of the Council, and the Mayor. The heading for section 402 of the
District Charter is entitled "Qualifications for Holding
Office." It states that:

No person shall hold the office of member of the
Council, including the Office of Chairman, unless he (a) is a qualified
elector; (b) is domiciled in the District and if he is nominated for
election from a particular ward, resides in the ward from which he is
nominated; (c) has resided and been domiciled in the District for one
year immediately preceding the day on which the general or special
election for such office is to be held; and (d) holds no public office
(other than his employment in and position as a member of the Council),
for which he is compensated in an amount in excess of his actual
expenses in connection therewith . . . .A member of the Council shall
forfeit his office upon failure to maintain the qualifications required
by this section . . . ."

2. Legislative history of the Home Rule Act makes
clear that Congress never intended the Council to be able to change the
size or qualifications for the Council.

As set forth above, in Subpart I-E, the
legislative history of the Home Rule Act clarifies that Congress did not
intend to allow the Council to enact regular legislation to alter the
qualifications of the Mayor, Council Chairman, and Councilmembers,
without following the Charter amending procedure. Since the power of
initiative is co-existent with the legislative power of the Council,
then the qualified registered electors would not be able to accomplish
by initiative what the Council has no legislative authority to do.16

3. The principles of statutory construction mandate a
charter change to include incumbents who have served two consecutive
terms in the office of Council Chairman, Member of the Council, and
Mayor as a qualification to hold office.

To interpret HRA §752 broadly to authorize
legislative enactments to alter qualifications for persons seeking
elective office, would violate several long standing principles of
statutory construction. There is a rule of statutory construction that
"statutory provisions must be construed together with related
provisions and not in isolation."
In re Bicksler,
501 A.2d 1, 6 (D.C. 1985). Also, provisions must
be read so that no part is inoperative or superfluous, void, or
insignificant. Singer, §46.06 at 104;
District of Columbia v. Thompson,
592 A.2d 621, 638 (D.C. 1991);
District of Columbia v. Acme Reporting
Co.., 530 A.2d 708, 713 (D.C. 1987). Moreover,
under established canons of statutory construction, absent contrary
legislative intent a general statutory provision will not take
precedence over a controlling specific statutory provision.
See Graham v. Berstein,
527 A.2d 736, 739 (D.C. 1983).

Interpreting HRA §752 to allow amendments to the
qualifications to hold office would render the language in §303 of the
Home Rule Act (charter amending procedure) meaningless with respect to
any provisions in the charter relating to elected officials. What would
be the point of having a charter amending procedure if section 752
allows charter changes by regular legislation with respect to elections?
If this were the case, Congress would have included an exception to HRA
§303 for matters relating to elections.

This broad interpretation would also render
section 402 and 421 meaningless. Those sections set out specific
criteria for persons to meet in order to be eligible to hold the office
of Council Chairman, Member of the Council, or Mayor. An act should
never be interpreted to produce such an absurd result. Singer, §46.06
at 104;
District of Columbia v. Thompson,
592 A.2d 621, 638 (D.C. 1991);
District of Columbia v. Acme Reporting Co.,
530 A.2d 708, 713 (D.C. 1987).

In the Home Rule Act, Congress included a specific
provision dealing with qualifications to hold office. Section 402 is
entitled "Qualifications for Holding Office" and section 421
is entitled "Election, Qualifications, Vacancy and
Compensation" for the Mayor. The provisions in HRA §752 may be
considered a general provision concerning the holding of elections in
the District. As the Court stated in
District of Columbia v. Linda Pollin Mem. Hous.
Corp.,
313 A.2d 579, 583 (D.C. 1974), "[g]eneral and
special provisions in a statute should stand together, if possible, and
be read together and, if possible, harmonized with a view to giving
effect to a consistent legislative policy. Where, however, general
provisions, terms, or expressions in one part of a statute are
inconsistent with more specific or particular provisions in another
part, the particular provisions must govern or control, as a clearer and
more definite expression of the legislative will .. . . "
Accordingly, applying this principle of statutory construction, HRA §
752 would allow the Council to adopt legislation pertaining to the
holding of elections, not the holding of the elected offices at issue.
The latter would be governed solely by sections 402 and 421 of the District Charter, which are amendable
only through following the charter amending procedures set forth in HRA
§303.

Sections 402,
421, and 752 must be read together and read
harmoniously to give full effect to each provision. I believe that,
after applying the rules of statutory interpretation, the better
interpretation is that the qualifications to hold office of Council
Chairman, Member of the Council, and Mayor cannot be altered except
through a Charter amendment.

4 . Applying the decisions in several cases which held
that term limits are a change in qualifications to hold elected office,
absent a Charter change Initiative 49 is an invalid promulgation of a
qualification to hold the office of Council Chairman, Member of the
Council, or Mayor.

A limitation upon the right of one who has held
public office to again seek office is typically viewed in two aspects:
First, as it bears upon the right of the class of people who have
occupied a particular office and, second, as it affects the
qualifications of candidates for the office sought.17
Hence, the
issue of term limitations is typically premised on whether or not a
legislature may add to the qualifications for office of the elected
official in question.

The issue of term limitations is typically
premised on whether or not a legislature may add to the qualifications
for office of the elected official in question. According to the
substantial weight of legal authority, where a constitution enumerates
specific eligibility requirements for a particular constitutional
office, the constitutional specification in that regard is exclusive and
the legislature (except where expressly authorized to do so) has no
power to require additional or different qualifications for such
constitutional office.18 However, where the constitution creates an
office, but does not prescribe any specific qualifications for
eligibility to it, the legislature has the power to prescribe
qualifications for such constitutional office.19

Two of the most recent cases in a line of court
decisions which illustrates this principle are United States Term Limits Inc. v. Thornton,
514 U.S. 779, 131 L.Ed. 2d 881, 115 S.Ct. 1842
(1995) and Gerberding v. Munro, 134 Wash.2d 188, 949 P.2d 1366 (1998). The Supreme
Court in Thornton invalidated an amendment to the Arkansas
constitution which, among other things, prevented any person elected to
three or more terms as a member of the United States House of
representatives from placing their name on the ballot for election to
the United States House of representatives from Arkansas. In declaring the
statute unconstitutional, the Court held that the states may not
alter or add the qualifications for
representatives enumerated in the Constitution. The Court also noted
that the Constitution sets forth qualifications for Members of the
Senate and the House of Representatives, and neither the Senate, the
House nor the states possess the power to add to or alter these
qualifications, absent an amendment to the Constitution.

Munro involved the constitutionality of Initiative 573
which prevented individuals who had held state legislative seats or
certain state constitutional offices for a prescribed time period from
filing a declaration of candidacy and appearing on the ballot for those
offices. In holding the statute unconstitutional, the court found that:
(1) term limits added "non-incumbency" as a new qualification,
which went beyond qualifications set forth in the state constitution;
(2) the exclusive list of qualifications in the constitution could only
be altered by constitutional amendment; and (3) a statute, whether
adopted by the legislature or the people could not add qualifications
for state constitutional officers where the state constitution set those
qualifications. Applying these holdings to D.C. Law 10-254, in my legal
opinion, additional qualifications may not be added to the office of
Mayor, Council Chairman, and member of the Council, without following
the Charter amending process set forth in § 303 of the Home Rule Act.
However, since the qualifications for members of the Board of Education
are not established within the Charter, D.C. Law 10-254 may be applied
to limit terms of members of the Board of Education.20

5. Even if Initiative 49 were a proper subject for
an initiative, the drafting of Initiative 49 is so fatally flawed that
enforcement would be difficult, if not impossible.

The drafting of Initiative 49 is so fatally flawed
as to make enforcement of the act impossible. First, the initiative
amends the wrong act. To affect the qualifications to hold office of the
Mayor and Council, the amendment has to be made to sections 402 and 421
(c) of the District Charter. As explained more fully above, this type of
change cannot, as a matter of law, be accomplished through an initiative
act.

Secondly, the qualifications to hold office set
forth in the local election act that was amended by Initiative 49, is
limited to the eligibility to hold elected office other than the Mayor,
Council Chairman, and Member of the Council. See note 5,
supra.
This misplacement of the two consecutive term
provision and the lack of legislative history as to the reason for the
selection of this law, at best makes the provision ambiguous as to its
application, and when considered with the "pursuant to this
section" language of that local law, makes it unenforceable. This section of the District of Columbia Elections
Code of 1955 (section 8) has nothing to do with the
ability to hold office of Mayor or member of the
Council.

It is
interesting to note that the language of
Initiative 49 follows the language in D.C. Code §11312(b)(1)(A) which
states that "No person shall hold elected office pursuant to this
section unless he or she has been a bona fide resident of the District
of Columbia continuously since the beginning of the 90-day period ending
on the date of the next election. . ." If members of the Council
were considered persons who hold office "pursuant to this section
[section 8 of the District of Columbia Elections Code of 1955]"
then the election code would directly conflict with the plain language
"No person shall hold the office of member of the Council,
including the Office of Chairman" and the "No person shall
hold the Office of Mayor" as well as the residency requirement set
forth in sections 402 and 421 of the District Charter for the Council
and the Mayor, respectively.

In my opinion, even, assuming arguendo,
that the term limit provisions could have been
done through an initiative, before the Board of Elections and Ethics
could apply this initiative to any incumbents, a court would have to
clarify the meaning of "hold elected office pursuant to this
section" contained in Initiative 49.

That D.C. Law 10-254 amends the District's
elections law rather than the Charter does not change its basic
character, which is an alteration to the qualifications for holding
public office.

The court
In Re Opinion of The Justices,
Del. Supr., 276 A.2d 736(1971), dealt with a bill
adopted by a simple majority of both houses of the legislature which
established a debt limit for cities with population in excess of 50,000.
The Justices first determined that a municipal charter consists of the
charter itself plus any statute properly passed after establishment of
the charter, even if the charter has not been labeled as a charter
amendment. The Justices found that the' original charter, with two
subsequent amendments, all of which had received a concurrence of
two-thirds of the members of the legislature, resulted in a debt limit
being specifically built into the charter. The Justices held, that the
latest bill was an attempt to change the charter and as such required a
tow-thirds majority vote. Having received only a simple majority vote it
was held invalid.21

In the instant case, D.C. Law 10-254 amended
section 8 of the District of Columbia Election Code of 1955, rather than
the qualification provision in the Charter. As such this measure may be
viewed as a
de facto
amendment to the Charter.

While the power of initiative is a great one, it
is not limitless. It is well established in the District of Columbia
that the power of initiative is co-existent with the power of the
legislative branch to enact legislative acts.22 If the
Council cannot directly or indirectly amend the Charter, neither can an
initiative.

CONCLUSION:

Courts have viewed limits placed on the
number of terms which elected officials may serve
as qualifications for that elected office. The majority view taken by
courts is where the constitution creates an office and sets forth the
qualifications of the office, a legislature has no power to vary those
qualifications, absent an explicit or implied grant of authority. The
District's Charter is the District's constitution. Absent a charter
change to the qualifications provisions of section 402 and 421(c), the
Council may not by act, nor may the people by initiative provide for
additional qualifications for elected offices. Therefore, D.C. Law 10254
is not valid to impose limits on the number of consecutive terms served
by the Mayor, Chairman or members of the Council.23

1. This is based on Article I, §
8, clause 16 of the U.S. Constitution which provides that: "The
Congress shall have power . . . . To exercise exclusive Legislation in all
Cases whatsoever, over such District (not exceeding ten Miles square) as
may, by Cession of particular Statutes, and the Acceptance of Congress,
become the Seat of Government of the United States. . . ."

2. §1-205. Charter amending
procedure.
Statute text
(a) The charter set forth in title IV (including any provision of law
amended by such title), except § § 1-221 (a) and 1-241(a), and part C of
such title, may be amended by an act passed by the Council and ratified by
a majority of the registered qualified electors of the District voting in
the referendum held for such ratification. The Chairman of the Council
shall submit all such acts to the Speaker of the House of Representatives
and the President of the Senate on the day the Board of Elections and
Ethics certifies that such act was ratified by a majority of the
registered qualified electors voting thereon in such referendum.
(b) An amendment to the charter ratified by the registered electors shall
take effect upon the expiration of the 35-calendar-day period (excluding
Saturdays, Sundays, holidays, and days on
which either House of Congress is
not in session) following the date such amendment was submitted to the
Congress, or upon the date prescribed by such amendment, whichever is
later, unless during such 35-day period, there has been enacted into law
a joint resolution, in accordance with the procedures specified in §
1-207, disapproving such amendment. In any case in which any such joint
resolution disapproving such an amendment has, within such case in which
any such joint resolution disapproving such an amendment has, within
such 35-day period, passed both Houses of Congress and has been
transmitted to the President, such resolution, upon becoming law
subsequent to the expiration of such 35-day period, shall be deemed to
have repealed such amendment, as of the date such resolution becomes
law. (c) The Board of Elections and Ethics shall prescribe such rules as
are necessary with respect to the distribution and signing of petitions
and the holding of elections for ratifying amendments to title IV of
this Act according to the procedures specified in subsection (a) of this
section. (d) The amending procedure provided in this section may not be
used to enact any law or affect any law with respect to which the
Council may not enact any act, resolution, or rule under the limitations
specified in §§ 1-206, 1-233, and 47-313.

3. Last year the
Council initiated its second charter referendum amendment - the School
Governance Charter Amendment Act of 2000 (Bill 13-469). This charter
referendum amendment was ratified by a majority of the electorate -
20,511 in favor and 19,668 opposed.

4. 'The "laws appropriating funds"
exception was placed into the initiative statute by the Council to
prevent unbudgeted costs from being incurred by the District government
as a result of the enactment of an initiative.

5. Those offices are the "office of national
committeeman or alternative, or national committeewoman or alternate,
and for election as a member of official designated for election at
large under paragraph (4) of § 1-1301 [members and officials of local
committees of political parties]."

6. Title IV of the Home Rule Act is the District Charter, consequently to
distinguish charter provisions this opinion when referring to matters in
Title IV of the Home Rule Act will use the phrase "District
Charter," but when referring to other matters in the Home Rule Act
this opinion will use the phrase "Home Rule Act" or "HRA."

9. Home Rule for the District of Columbia 1973-1974,
House Committee on the District of Columbia, 93rd Cong. 2d Sess., Serial
No. S-4, December 24, 1973, 2916, 2919.

10. I use the phrase "may be a violation of
the Home Rule Act" because only a court can conclusively determine
whether the Term Limits Act violates the Home Rule Act. As stated
earlier, whether section 752 allows the Council or the people through an
initiative to expand the qualifications to hold office of member of the
Council or Mayor is an issue of first impression in the District.

13. A basic tenet of statutory interpretation is
that "there is no safer nor better settled canon of interpretation
than that when language is clear and unambiguous it must mean what it
plainly expresses." Singer, supra, § 46.01, at 73.

2 0.
The Council can amend congressional legislation
which applies exclusively to the District of Columbia. D.C
v. Greater Washington Central Labor Council,
AFL-CIO,
442 A.2d I 10,
cert. denied,
460 U.S. 1016 (1983). Since the act which
prescribes the qualifications to hold office of member of the Board of
Education is a congressional act which applies exclusively to the
District of Columbia, the Council and thus the people through initiative
can amend that act.

21.
"Statutes may be amendatory to a city charter
by necessary implication, despite the absence any express reference to
the Charter therein. The force and effect of a statute determines its
nature and character, not labels or the lack thereof." Id. at 741

23. I
understand from the Board of Elections and Ethics
that its action in accepting this initiative was based, in part, on an
opinion issued by the General Counsel to the D.C. Council. That opinion
was occasioned by the Council's consideration of bills in Council
Periods 7 and 8 that would have imposed consecutive term limits on the
Office of the Mayor. It should be noted that the opinions of the General
Counsel, unlike court opinions, have no precedential value and the
Council rules provide that they are advisory, and have no binding effect
on the Council.
Council Rule 263. They are based on the law as it
exists at the time of the issuance of the opinion and the facts as
presented to the General Counsel. In this case, many years have passed
since the issuance of the earlier opinion of the General Counsel. At the
time of the issuance of the earlier opinion, case law was nonexistent on
the issue of term limits. In the interim, however, case law has evolved
on the issue of terms limits, especially on the question of whether
consecutive terms are qualifications to hold office. Applying those
cases to Initiative 49 has resulted in my reaching a different opinion
than the one authored by my predecessor.